George W. Bush’s lawyers had wanted the justices to consider a broader question: whether Florida’s recounts were so arbitrary and prone to partisan manipulation that they violated due process and equal protection of the law, counting kinds of ballots in some counties that would not be counted in others. The court declined to hear that argument for now, and agreed only to consider a narrower question of interlocking state and federal election law. Republican lawyers, led by Theodore B. Olson, will argue that by extending the original certification deadline, the Florida State Supreme Court violated Article II, Section 1, of the U.S. Constitution, which says that states are to choose members of the Electoral College according to laws established by their legislatures, not their courts. Bush’s legal team also points to a little-known 1887 statute in the U.S. Code, which says that a state’s electors are to be chosen in accordance with “laws enacted prior to” the election. Bush’s lawyers argue that the Florida Supremes violated federal law by disregarding the state legislature and making up new rules after the election. Al Gore’s lawyers, led by Laurence Tribe and Atlanta-based constitutional lawyer Teresa Wynn Roseborough, will argue that the Florida Supreme Court was simply clearing up conflicts in the state’s election laws–something courts do all the time–not writing new laws.
In accepting the case, the justices instructed both sides to prepare to answer a key question: if the court finds that the Florida Supreme Court did violate federal law, “what would be the consequences?” In other words: what happens then? The path of least resistance for the court would be to reaffirm the Florida decision and let matters take their course. But if the justices reverse the Florida court, they will probably look for a solution that brings an end to the presidential sweepstakes sooner rather than later. One pretty safe bet: no more recounts.
It’s apparent from the court’s willingness to hear the case that some of the justices take the Bush camp’s arguments seriously. But the decision to give Bush a respectful hearing does not necessarily foreshadow a ruling in his favor. Plenty of pundits have spouted the conventional–and false–line that the current court is a conservative body that will naturally tilt toward Bush and against Gore. In fact, one asset the court brings to this case is an ideological balance that very closely mirrors the nation’s political divisions. Although seven of the U.S. Supreme Court’s nine members were chosen by Republican presidents, only three of these–Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas–are strong conservatives. Two others–Anthony Kennedy and Sandra Day O’Connor–are centrists, though they lean toward the conservatives in matters of states’ rights. The two others–John Paul Stevens and David Souter–lean to the liberal side, as do Bill Clinton’s two appointees, Ruth Bader Ginsburg and Stephen Breyer. It’s anybody’s guess if more of the nine justices voted for Bush than for Gore.
It’s true that the court’s three conservatives and two centrists are more sympathetic to states’ rights than its four liberals are. But these are differences of degree, not warring absolutes. Each of the nine justices has voted in many cases to reverse decisions of state supreme courts, and to strike down state election laws as inconsistent with the Constitution or federal statutes. And each of them has also voted in many cases to uphold state laws, including election laws, against challenges. Take Scalia, arguably the court’s most conservative justice. A champion of states’ rights, he might naturally lean toward deferring to the Florida court’s rulings. But he is also a devotee of literalist “textualism” in interpreting laws. That might make him especially skeptical of the Florida court’s decision to disregard the legislature’s deadline and impose its own vision of how to determine the “will of the people.”
The justices are also mindful that this case puts their own credibility on the line. A 5-4 vote along conservative-liberal lines awarding the presidency to either Bush or Gore would leave the justices spattered with the same accusations of partisanship that have tarred just about everybody taking part in the process so far. To preserve the court’s treasured reputation as a voice of calm and reason amid chaos and discord, Chief Justice Rehnquist may press his colleagues to work through their own differences in private–and then speak with one voice to the country. Unanimous decisions have given special credibility to the court’s rulings in two of the past century’s weightiest cases. In the landmark 1954 Brown v. Board of Education, the justices overcame deep disagreements to strike down by 9-0 state-imposed school segregation. In 1974’s United States v. Nixon, the court ordered the president to turn his tapes over to Special Prosecutor Archibald Cox, a ruling that eventually led to Nixon’s resignation. In both cases, more than one justice swallowed doubts in the interest of speaking with one powerful voice. And then–as now–it was impossible to guess just what that voice would say.
